Until recently, registration requirements for sexual offenders were considered civil in nature rather than criminal. This all changed in the case of Commonwealth v. Muniz. In that case the Pennsylvania Supreme Court ruled that the reporting requirements of the Pennsylvania Sexual Offender Registration and Notification Act (SORNA) rose above the threshold of civil punishment and were criminal in nature, therefore any retroactive application of SORNA violates Ex Post Facto Clause of the Federal and Pennsylvania Constitutions. Muniz was a sea change in the longstanding law of this Commonwealth as it determined that the registration requirements under SORNA are not civil in nature but a criminal punishment.

Under this framework, the method for designating a convicted defendant a Sexually Violent Predator (SVP) was ruled to violate the federal and state constitutions. Under SORNA, an individual convicted of a sexually violent offense, must be evaluated by the Sexual Offender Assessment Board (SOAB). The SOAB conducts a 15–factor analysis to determine if the individual should be designated an SVP. The SOAB then submits a report to the prosecuting authority who can then request the trial court to schedule an SVP hearing. At the conclusion of that hearing, the court determines whether the Commonwealth has proved by clear and convincing evidence that the individual is an SVP. This last step in the process, found in section 9799.24(e)(3), presents the issue.

Typically an offender will register for periods of 15 years, 25 years, or for life, however a person designated an SVP faces mandatory lifetime registration and increased reporting requirements under SORNA, regardless of the offense committed. In the case of Commonwealth v. Butler, if the Defendant were not designated an SVP, he would be required to register for only 15 years, however he was found by clear and convincing evidence to be an SVP and required to register for life.

If the sanctions mandated by SORNA are indeed criminal punishment as was ruled in the Muniz case, the penalties cannot result from a hearing in which a defendant is exposed to increased criminal penalties without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt.

Such was the case with Mr. Butler, a “clear and convincing” standard is below the “beyond a reasonable doubt” standard required for a finding of guilt and the imposition of a criminal punishment. Mr. Butler’s penalties increased because a judge ruled that the Commonwealth proved by the less stringent clear and convincing standard that he was an SVP. The Superior Court ruled that it is unconstitutional to increase a criminal punishment by any standard falling short of the beyond the reasonable doubt standard which is fundamental to our system of criminal justice.

Currently, there is no other standard by which to designate a defendant as an SVP. As such, trial courts may no longer designate convicted defendants as SVPs, nor may they hold SVP hearings, until our General Assembly enacts a constitutional designation mechanism.

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If you find yourself facing criminal charges which could result in sexual offender registration, ensure your constitutional rights are protected by contacting the experienced Attorneys of Mooney & Associates. We stand ready to assist you in your time of need and you know you can Count on Mooney, whatever your legal need.

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